12 3 45 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MARC S. STERN Attorney at Law 5610 -20th Avenue NW Seattle, WA 98107 (206) 448-7996 DEBTOR’S BRIEF IN OPPOSITION TO DISMISSAL -1 F:\WP\Witts, Lori\memorandum of law.wpd Marc S. Stern Hon. Samuel J. Steiner Attorney at Law Chapter 7 5610 -20th Avenue NW Hearing Date: May 14, 2003 Seattle, WA 98107 Hearing Time: Everett 10:00 a.m. (206) 448-7996 Response Date: April 30, 2003 mstern@abanet. org UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE In Re: , Debtor. _____________________________________)))))) No. 03-9 DEBTOR’S BRIEF IN OPPOSITION TO DISMISSAL FACTS 1. The Debtor, , is a United States Citizen. She also has landed immigrant status in Canada. 2. Her parents are domiciled in Edmonds, Washington. She has consistently used the Edmonds address for all United States creditors. There are no Canadian creditors and the effect of an American bankruptcy discharge on Canadian creditors is not an issue in this case. 3. The uncontroverted affidavits on file represent that she spends an average of 8 -9 days in Edmonds at the family residence and maintains that location as a residence. She is registered to vote in Edmonds, Washington. 4. The uncontroverted facts also show that she has furniture, dishes, and glassware and misc. household goods located in Edmonds, Washington. ISSUE PRESENTED Is a United States citizen deprived of the ability to file a bankruptcy petition dealing with American Creditors because she is domiciled in Canada but maintains a residence in the United States? 1 Marc S. Stern Hon. Samuel J. Steiner Attorney at Law Chapter 7 Seattle, WA 98107 Hearing Time: Everett 10:00 a.m. Date: April WASHINGTON ) ) DEBTOR'S ) She immigrant domiciled She has for There are bankruptcy discharge on Canadian creditors is not an issue in this case. on file represent that she spends that she dishes, PRESENTED citizen deprived of the ability file petition because in Avenue NW 28 DEBTOR'S OPPOSITION -1 F:AWP\Wits, LoriAmemorandum of Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=f18d9dea-15e6-42ff-9d8a-8b509f9b8bf41 2345 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MARC S. STERN Attorney at Law 5610 -20th Avenue NW Seattle, WA 98107 (206) 448-7996 DEBTOR’S BRIEF IN OPPOSITION TO DISMISSAL -2 F:\WP\Witts, Lori\memorandum of law.wpd LEGAL ARGUMENT The trustee’s motion to dismiss is based upon a misreading of § 109. Section 109 reads in part (a) Notwithstanding any other provision of this section, only a person that resides or has a domicile, a place of business, or property in the United States, or a municipality, may be a debtor under this title. [emphasis supplied] While it is true that a person may have only one domicile, she may have many residences. No one disputes that a person can have more than one residence, but only one domicile. See, In re Saunders, 240 B.R. 636, 641 (S.D.Fla. 1999) The debtor submits that a person who spends approximately one week per month in a house resides there, even though she may have a different domicile. Counsel has been able to find no cases dealing with the amount of time a person must spend at a location to meet the “resides at” requirement of §109(a). The uncontroverted fact is that she maintains a residence in the United States and within the district. The property issue, been litigated. In Bank of America, v. World of English, 23 B.R. 1015; (D ND Ga 1982) the District Court upheld the Bankruptcy Court’s decision that the existence of a bank account in the United States provided sufficient “property” within the United States so as to give the court jurisdiction. The court held: [C]ourts have analyzed the "property" requirement . . . focusing on the need to have "efficient control" and to protect creditors. In In re San Antonio Land & Irrigation Co., 228 F. 984 (S.D.N.Y. 1916), the court [**25] stated that: a bankruptcy proceeding is a kind of equitable attachment, which should be held to reach whatever assets any available judicial process can reach. Consequently, the situs of property is not to be determined by general doctrines, such as "mobilia sequuntur personam," which may well be applicable in matters like the law of inheritance, but by power of efficient control .... in order to protect creditors and safeguard the taxing power. ARGUMENT trustee's dismiss based 109. property in the United States, or a municipality, may be a debtor emphasis it is true that a person may have only one domicile, she may have many residences. more than one residence, but only one domicile. re Saunders, 240 B.R. 636, 641 (S.D.Fla. 1999) The debtor submits that a person who spends one week per month in a house resides there, she Counsel has been no cases "at" of § uncontrovered fact is that she and within been litigated. Court's of bank account in the United States provided sufficient "property" within to give the court jurisdiction. courtheld: the "property" requirement ... to have "efficient creditors. re San Antonio Land & Irrigation Co., court [**stated kind any available process as "mobilia ... . Avenue NW 28 DEBTOR'S F:AWP\Wits, LoriAmemorandum of Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=f18d9dea-15e6-42ff-9d8a-8b509f9b8bf41 2 34 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MARC S. STERN Attorney at Law 5610 -20th Avenue NW Seattle, WA 98107 (206) 448-7996 DEBTOR’S BRIEF IN OPPOSITION TO DISMISSAL -3 F:\WP\Witts, Lori\memorandum of law.wpd 228 F. at 990. The court then held that the debtor's balance of $8.06 in a New York bank account was "property" in New York within the meaning of the Bankruptcy Act. 228 F. at 990. More recently, in in Re: Laura Farmer, 288 B.R. 31; (Bcy N.D. NY 2002) the court held that the debtor was eligible to file based upon a bank account within the United States. In ruling the court quoted with approval In re McTague, 198 B.R. 428 (Bankr. W.D.N.Y. 1996). Judge Kaplan concluded that the court did not have discretion to look behind the language of Code §109(a) and declare that the quantity of property in the United States is decisive on the issue of eligibility to be a debtor under the Code whether it is "a dollar, a dime or a peppercorn located in the United States." Id. at 432. The court then denied the UST's motion to dismiss, which was based only on Code §109(a). In Re: Iglesias, Debtor. 226 B.R. 721; (B SD Fl. 1998) presents another case with a similar result. The debtor’s sole asset within the United States was a bank account with a balance of $520.00 Thus, notwithstanding the fact the Debtor does not have a place of residence, domicile or business in the United States, Debtor's principal asset has its situs within [**5] this district, and venue is therefore proper in this Court. Moreover, the Debtor has no other assets in any other district of the United States, so venue would not lie in any other district pursuant to 28 U.S.C. § 1408. Accordingly, this district is the proper venue for this Debtor's bankruptcy case. The Court is bewildered as to why this Debtor's creditors, who appear to be primarily credit card issuers from the United States, would extend credit to someone with only $ 522.00 in his bank account and whose income is only $ 522.00 per month, but the Court is hopeful that, during the course of these proceedings, its questions will be answered. The facts demonstrate that the debtor has assets in this judicial district. The fact that the assets may be exempt is not relevant. the statute does not appear to be vague or ambiguous, and it seems to have such a plain meaning as to leave the Court no discretion to consider whether it was the intent of Congress to permit someone to obtain a bankruptcy discharge solely on the basis of having a of was "property" in New within the meaning of the Bankruptcy Act. 228 F. at 990. 3 B.(BcyN.2002) eligible bank account within the United States. In (behind the language of Code § propery in the United States to be a in UST's motion on Code § 226 B.R. 721; (B SD Fl. 1998) presents another The debtor's sole asset the United States was the does business States, has its situs within [**5] the has in States, in any other pursuant 28 U.S.C. § 1408. this district is the proper venue case. primarily would with that, during the course of these proceedings, be answered. that the debtor has assets in this judicial district. may exempt seems the Court Avenue NW 28 DEBTOR'S OPPOSITION F:AWP\Wits, LoriAmemorandum of Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=f18d9dea-15e6-42ff-9d8a-8b509f9b8bf41 23 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MARC S. STERN Attorney at Law 5610 -20th Avenue NW Seattle, WA 98107 (206) 448-7996 DEBTOR’S BRIEF IN OPPOSITION TO DISMISSAL -4 F:\WP\Witts, Lori\memorandum of law.wpd dollar, a dime or a peppercorn located in the United States. The Court will so rule In re McTague, supra at 432. CONCLUSION In the case before the court the debtor has substantial property located in this judicial district in the nature of exempt furniture and household goods which she uses on a regular basis. She has a residence here and she spends approximately a week per month at the property. She is registered to vote. She is clearly eligible to be a debtor in this proceeding. Respectfully submitted this April 28, 2003 /s/Marc S. Stern Marc S. Stern WSBA #8194 Attorney for Debtor so 2 In re McTague, supra at 432. the court debtor has substantial property located in this judicial in the nature of exempt furniture and household goods which she uses on a regular basis. a residence here and she spends approximately a week per month at the property. to be a proceeding. 28, /s/Marc S. Stern Avenue NW 28 DEBTOR'S F:AWP\Wits, LoriAmemorandum of Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=f18d9dea-15e6-42ff-9d8a-8b509f9b8bf4

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